Decision Date: November 2, 2010

Panel: Alan Andison

Keywords:  Forest Act – s. 105; Coast Appraisal Manual; consent order; stumpage rate; point of origin; appraisal log dump

Western Forest Products Inc. (“Western”) appealed two stumpage determinations issued by the Regional Appraisal Coordinator (the “Coordinator”),  Forest Region, Ministry of Forests and Range, for two cutting permits on Vancouver Island.  Western appealed on the basis that the Coordinator erred by using a log dump at Jordan River rather than the Otter Point log dump as the appraisal log dump and point of origin, and by using the haul distance to Jordan River, in the stumpage determinations.

At the parties’ request, the appeals were held in abeyance for several years, pending the outcome of court proceedings involving some of the Commission’s decisions in other appeals involving the same or similar issues.  In one of those decisions, the Commission had concluded that the Jordan River log dump was not suitable for use by a notional average operator, and it would be unfair to appraise the stumpage rate applicable to Western’s cutting authorities based on Jordan River as the point of origin, when all other licensees in the area were appraised to another log dump (see Western Forest Products Ltd. v. Government of British Columbia, Decision No. 2004-FA-003(c), issued September 21, 2005).  That decision was appealed to the BC Supreme Court, and then to the BC Court of Appeal.

In August 2009, BC Court Appeal released its decision in Western Forest Products Inc. v. HMTQ, 2009 BCCA 354, which upheld the Commission’s decision.  The Province then sought leave from the Supreme Court of Canada to appeal that judgement.  On March 11, 2010, the Province’s application for leave was dismissed.

Following the conclusion of those court proceedings, the parties agreed to settle the appeals.  By consent of the parties, the Commission ordered that the stumpage determinations be rescinded and remitted back to the Coordinator for redetermination utilizing Otter Point as the appraisal log dump, with appropriate haul distances and points of origin.

Accordingly, the appeals were allowed.